Daley v. Cox

By the Court, Crockett, J.: This is an action to determine the relative proportion in which the plaintiffs and defendants are entitled to use, for purposes of irrigation, the waters of a certain ditch in San Bernardino County. The complaint avers that the ownership of. the ditch is divided into fifty-one share; of which forty-eight belong .to the plaintiffs, one to the defendant Cox, one to the defendant Louisa Morse, and one to the estate of Rich; and that the several owners are entitled to use the water in these proportions and not otherwise. But, [129]it avers, the defendants áre using, and claim the right to use, a larger proportion than they are rightfully entitled to, thereby depriving the plaintiffs of their just share of the water. The answer admits the joint ownership of the ditch, but avers that it is divided into fifty-four instead of fifty-one shares; of which the plaintiffs severally own in the aggregate forty-eight shares, the defendant Cox three, Morse two, and the estate of. Rich one share. This presents a mere issue of fact as to the number of shares in the ditch; and the Court below, on conflicting, and, we think, sufficient evidence, found the issue in favor of the plaintiffs. This practically disposes of the case. But the defendants contend that under the Act of February 18, 1864, creating a Board of Water Commissioners for San Bernardino County (Statutes 1863-4, p. 87), that Board has the exclusive right to determine the proportions in which the waters of the ditch shall be distributed to the proprietors; and there was put in evidence at the trial an order of the Board authorizing Cox to take from the ditch a quantity of water representing three shares, and Morse a quantity representing two shares. The second section of the Act is relied upon as conferring upon the Board an exclusive right to determine such matters, whose decision, it is claimed, cannot be reviewed in the Courts. This Act affords a striking example of improvident, crude legislation. Its provisions are so vague, its language so obscure, its whole structure so loose and disjointed, that we can scarcely hope to deduce from it any very satisfactory conclusion as to its meaning. The second subdivision of section two is in these words:

“Upon a petition of a majority of those interested, or who own legitimate claims on any ditch, they (the Board of Commissioners) shall lay out any ditch or ditches and apportion the water thereof among the persons using the same, in proportion to the amount of land each person may wish to irrigate; provided, there should be water sufficient in said ditch for the irrigation of all said land. But in case there should not be a sufficient amount of water for said irrigation in any such ditch, upon a petition of a majority